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TMI Blog2023 (11) TMI 1001X X X X Extracts X X X X X X X X Extracts X X X X ..... me Tax Act, 1961 in the business premises of Shri Kishore Kumar Mohapatra and group of assessees on 22.07.2015. As a result of such survey, return of the respondent-assessee was selected for scrutiny of assessment under CASS (Computer-Assisted Scrutiny Selection). During the course of survey, the assessee, who is a family member of this group, was confronted with the statements of Directors of certain Kolkata based companies whose shares were bought and sold in the stock market by the respondent-assessee. Those Kolkata based companies were under scanner of the I.T. Department for providing accommodation entries and had subsequently been subjected to search and seizure operations. A list of beneficiaries, who had taken accommodation entries from those Kolkata based companies, had been drawn up by the I.T. Department and the family members of Shri Kishore Kumar Mohapatra group featured in it. Consequently, the respondent-assessee filed a revised return of income, on 24.09.2015, for the Assessment Year 2014-15, wherein the original claim of exemption under Section 10(38) of the Income Tax Act, 1961 in respect of Long Term Capital Gain (LTCG) on shares was withdrawn and the entire inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L on penny stocks, the CBDT had come up with Circular No.23 of 2019 dated 06.09.2019 and Office Memorandum by special order dated 16.09.2019, mentioning therein that the monetary limit fixed for filing further appeals shall not apply in cases, where assessees are claiming bogus LTCG/STCL in penny stocks, and appeals in such cases shall be filed on merits. Therefore, the revenue filed Miscellaneous Application on 11.11.2019 before the ITAT for the Assessment Year 2014- 15 for consideration of the case on merit. The same was registered as M.A. No. 17/CTK/2019. But the Tribunal, vide order dated 30.03.2022, dismissed the said Miscellaneous Application of the revenue on the ground that the Tribunal had passed order on 20.08.2019 as tax effect is below monetary limit and the CBDT issued special circular on 06.09.2019 read with special circular dated 16.09.2019, i.e., after passing the order of the Tribunal. Therefore, it cannot be alleged that special circular had not been considered by the Tribunal, which was not a mistake apparent on record to recall the order for fresh consideration. The Tribunal had also cited the decisions of the ITAT, Ahmedabad and ITAT, Jaipur Benches in the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xmann.com 305 (Punjab & Haryana): [2015] 374 ITR 20 (Punjab & Haryana); the decision of High Court of Jammu & Kashmir and Ladakh in the case of Kashmir Fabric Industries v. Income-tax Appellate Tribunal, [2021] 133 Taxmann.com 369 (Jammu & Kashmir and Ladakh): [2022] 284 Taxman 552 (Jammu & Kashmir and Ladakh); and the decision of the High Court of Rajasthan in the case of Madhav Marbles & Granites v. Income-tax Appellate Tribunal, [2012] 22 Taxmann.com 51 (Rajasthan): [2012] 246 CTR 243 (Rajasthan). 5. Coming to the merits of the case and on perusal of the orders passed by the Assessing Officer, CIT (A) and the ITAT, this Court finds that the claim for the benefit under Section 10 (38) of the Act had not been considered in its proper perspective and the ITAT is justified in accepting the plea of the respondent-assessee. Therefore, the ITAT has rightly denied to interfere with the same. Furthermore, the CBDT circular that permitted to the assessee to file revised returns if he omitted to make a claim, was also not noticed by the Assessing Officer. Therefore, the ITAT has not committed any error in concurring with the view of CIT (A) by dismissing the revenue's appeal. As such, no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incipal Commissioner or Commissioner; (b) [***] (c) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved. (2A) The High Court may admit an appeal after the expiry of the period of one hundred and twenty days referred to in clause (a) of sub-section (2), if it is satisfied that there was sufficient cause for not filing the same within that period. (3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (4) The appeal shall be heard only on the question so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question : Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question. (5) The High Court shall decide the question of law so formulated and deliver such judgment thereon containing the grounds on which such decision is founded and may award such cost as it dee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maintainable. At best, the appellant could have taken other remedies available under the provisions of law. 11. In Krishna Gupta (supra), the High Court of Delhi observed that the petitioner wanted rehearing of the appeal on merits. The application under Section 254 (2) of the Act was filed for rectification or modification of the order of the Tribunal when there was a mistake apparent from record. The Tribunal in the garb of mistake cannot give fresh hearing and re-examine the matter as an appellate Court and, accordingly, dismissed the writ petition. 12. In Saroop Tanneries Ltd (supra), the High Court of Punjab and Haryana held that the order in an application under Section 254 (2) of the Income Tax Act is not appealable one. 13. In Kashmir Fabric Industries (supra), the High Court Jammu & Kashmir and Ladakh held that no appeal lies under Section 260A against an order rejecting the application filed under Section 254 (2). Therefore, in absence of any statutory remedy against it, writ petition is only remedy, if any, available. 14. In Madhav Marbles & Granites (supra), the High Court of Rajasthan held that the writ petition under Article 226 of Constitution of India is maintai ..... 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